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Geist: Why Canada’s new copyright bill remains flawed

Last week, the government tabled Bill C-11, the latest attempt to reform Canadian copyright law. The bill mirrors its previous copyright bill and is expected to sail through the House of Commons with committee hearings that will pick up where they left off in March.

When Bill C-32 was introduced in June 2010, many noted that there was a lot to like in the bill, but that the digital lock provisions, which give locks on DVDs, CDs, and electronic books enhanced legal protections, constituted a glaring problem that undermined much of the attempt to strike a balance.

The effect of the rules is that consumer rights found in the bill are lost when the copyright owner installs a digital lock that can restrict access.

Consumers purchasing DVDs from foreign countries may find they will not play on Canadian DVD players and students may be restricted from copying portions of their electronic books for class assignments.

In trying to understand the government’s copyright strategy, it helps to think of the bill as two separate pieces of legislation. The first is the Copyright Modernization Act, a reasonably balanced piece of legislation that seeks to strike a compromise on many key issues.

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For example, the bill enhances fair dealing, Canada’s version of fair use, by adding parody, satire, and education to the fair dealing categories (the current list includes research, private study, news reporting, criticism and review).

While this does not match the flexibility of the U.S. fair use provision that enables new innovative business models, the government deserves credit for sticking by the fair dealing reforms in the face of a relentless misinformation campaign by publishers and copyright collectives, who inaccurately claimed that the changes would lead to massive uncompensated copying.

On the other hand, the second bill might be described as the Reduce U.S. Pressure Copyright Act. This part of the bill contains the digital lock provisions, which are amongst the most restrictive in the world.

The government’s own clause-by-clause analysis of the bill, obtained under the Access to Information Act, states that these provisions apply even when there is not “an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions.”

In fact, the government admitted at the Bill C-32 legislative committee that the digital lock rules, which extend far beyond those required for compliance with international treaties, trump education rights. Moreover, many of our trading partners have adopted more balanced digital lock rules and even the U.S. offers greater flexibility than Canada.

The public concern with the digital lock rules was the top concern voiced during the 2009 national copyright consultation and foremost issue discussed in the submissions to the Bill C-32 legislative committee as a wide range of stakeholders, including virtually every education group in Canada, consumer groups, and technology companies all supported compromise language.

Given the opposition, why is the government sticking to its restrictive digital lock rules when a more balanced approach is readily available? The answer is seemingly obvious — the approach is primarily about satisfying U.S. pressure, not public opinion.

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The U.S. pressure on Canada is not a secret, with criticism of past bills and regular demands for action on copyright in return for progress on other border and trade issues.

As previously reported in the Star, Prime Minister Stephen Harper personally promised U.S. President George W. Bush in 2008 that Canada would pass copyright reforms. Former Industry Minister Maxime Bernier raised the possibility of leaking an advance copy of the copyright bill to the U.S. And former Industry Minister Tony Clement’s copyright policy adviser encouraged the U.S. to pressure Canada by elevating us on their piracy watch list.

After years of false starts, it is clear that this copyright bill will pass, likely before the end of the year.

While there is much to like in Bill C-11, the inability to stand up to U.S. pressure on digital locks represents a huge failure. Indeed, it sends the message that when pressed, Canada will cave. The Europeans have already figured that out with their extensive intellectual property demands in the Canada-EU Trade Agreement, and the U.S. will no doubt be back again, demanding new IP enforcement rules not included in this bill.

The failure of C-11 is that the government isn’t relieving the copyright pressure. It is asking for more.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached online at www.michaelgeist.ca.

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